Public transcripts

The language of counter-corruption in Myanmar goes back to precolonial times, but in its modern form is largely a product of the colonial period. The British initially characterised corruption as residue from earlier power relations based on patronage; a consequence of the presumed inferiority of subject races to Europeans, and a feature of the allegedly arbitrary rule of indigenous monarchs. They portrayed the precolonial state as endemically corrupt, its colonial successor, by contrast, as suffering from subordinate corruption.⁵

In 1940, an official committee acknowledged the extent of practices bracketed as corruption. It described them as widespread because of impunity, secrecy, and superior officers’ lack of courage to do anything about it.⁶ Like the documents of other state-established commissions of inquiry into ostensibly deviant practices, the committee’s report reads in part as a morality tale, in part as a confirmation of what everyone already presumed to know.⁷ The committee painted a bleak picture, with police allegedly refusing to record criminal complaints without first receiving money, or recording them incorrectly; taking money from the aggrieved on all sorts of pretexts; and supporting or opposing bail depending on payment of bribes. The committee also estimated that at least half of all judicial officers were receiving gratuities.⁸ Combining what Ann Stoler characterises as a ‘passion for numbers with … the pathos of vignette’, it cited various examples of how payments were made and monies kept, including cases where judges allegedly took money from both sides but did not return any to the losing side; where the accused was kept in custody and the date for handing down a sentence was repeatedly postponed so that the detainee would pay; and, where trial records were doctored and falsified.⁹

By the late colonial period, officeholders, media reports, and government records uniformly described corruption as a serious phenomenon but generally dismissed it, according to Jonathan Saha, ‘as a set of ephemeral, ultimately meaningless acts committed by marginal, errant petty officials’.¹⁰ The speechifying continued and gathered strength following independence with the first prime minister issuing complaints about ‘termites’ eating at the foundations of state: publicly citing cases of policemen supplying arms to robbers and politicians, and releasing accused criminals on pressure from members of his own political party.¹¹ He went further than his colonial predecessors in setting up an independent agency to investigate corrupt practices, the Bureau of Special Investigation, but was subsequently forced to defend it against allegations that it was itself corrupt and abusive. The bureau had some successes and for a time was feared among civil servants. After 1962, the military government brought the bureau under the National Intelligence Bureau, and its purpose was defeated – if not its aptitude for exercising violence with impunity.¹²

From 1962, party organs assailed the tactics of capitalists who had used their money to thwart justice. They urged all civil servants, judges, police, lawyers, and citizens to put an end to such practices as soon as possible. Bias, abuses of power, incompetence, and pressures from superiors abounded regardless.¹³ Judges became preoccupied with pleasing council officials so as to secure reappointment for reasons of personal advantage.¹⁴ As economic conditions worsened, party documents privately acknowledged that bribery was endemic and probably uncontrollable through prosecutions.¹⁵ However, when compared with conditions in the 1990s and 2000s, anecdotal accounts suggest that the amounts involved and types of corruption differed. The money economy was smaller, and judges did not aim for ostentatious lifestyles. Payments were often not in cash but in the form of simple, locally manufactured goods that recipients could use or resell – a new sarong, a drum of good-quality cooking oil.

Later governments amplified the rhetoric on corruption, consistent with the lexicon and semantics of law and order. During the 1990s and early 2000s, the intelligence chief Khin Nyunt took centre stage in one performance after another of military officers chastising judges and other personnel for corrupt practices. In 1993, for instance, he said:

The following year, Khin Nyunt listed a variety of cases to prove the point; all of them illustrative of routine practices for moneymaking that still continue. They included one where a judge and prosecutor colluded with a defence lawyer to release an accused drug manufacturer; where a judge released three persons accused of counterfeiting banknotes, despite ample evidence on which to convict; where another judge altered a charge against timber smugglers from a serious offence to one carrying minor penalties; where a judge imprisoned a person or persons for playing the illegal lottery but released the broker; and where a judge forced the sister of a defendant to have sex with him in his chambers.¹⁷

The early 1990s was a critical time for rebuilding the law-and-order state, and the language of counter-corruption was especially pronounced. The Supreme Court was busy with a major project to police and punish subordinate wayward judges who until only a few years earlier had been serving as clerks, advisors, and administrators. Khin Nyunt was not making stories up. His tirades reflected the contents of complaints addressed to him personally. They also reflected the contents of internal records during this period, in which top officials warned that despite repeated exhortations to stamp out bribery and other misdeeds, they had ascertained that ‘the public remains critical of the continued acceptance of bribes by some civil service organisations’.¹⁸

Although by the 2000s the superior courts policed and punished their subordinates with less urgency, the narrative on counter-corruption continued. In 2002, for instance, Khin Nyunt warned of possible sanctions for wrongdoing, but as usual stressed the need for judges to be supervised well and to comport themselves appropriately, describing some as being ‘notorious for taking bribes’.¹⁹

In 2004, Khin Nyunt lost his own job, and after he was prosecuted over alleged corruption the home affairs minister placed him under house arrest.²⁰ His successors continued the moralistic narrative, albeit in a more circumspect manner. In 2007, the then prime minister, General Soe Win, stated that people were commonly discussing the misbehaviour of judges and that all judicial personnel needed to be upstanding in their character and work practices. He added ‘that if the weaknesses and flaws are examined, it can be observed that generally they are resulting not from inadequacies and weaknesses in the system, codes of conduct and working procedures, but are flaws and weaknesses of the individual’.²¹ In 2009, Prime Minister General Thein Sein, reading from the same script, told assembled judges that the weaknesses were not institutional but ethical; flaws of individuals, not organisations.²² In March 2011 during his inaugural oratory as president, the former general stressed the importance of the rule of law and avoidance of corrupt practices in order to ensure clean government.²³

The narrative has continued through a variety of official pronouncements since political change began. For instance, a presidential speech in August 2013 to newly appointed officials warned them ‘to keep personal character and integrity, and to avoid dishonesty and corruption’ so the country would have the rule of law.²⁴ The distance between this position and the position of the army officers who until 2011 insisted on holding a monopoly on public discourse is not very great. Since the institutional cause of corruption is supposed to be insufficient money, beyond the question of economics the phenomenon again is reduced to the vices of individuals, and not institutional or ideological factors.

So what is the trouble here? Does not everyone want good, clean government? We would be hard-pressed to find anyone who would ask, at least publicly, for bad, dirty government, but to subscribe to the language of the prime-minister-cum-president and assorted other officials on this basis alone would be to miss the point. The language of counter-corruption does not conceal the dirty linen, but shifts the blame to everyone except people who hold the mantle of authority. Its recurrent theme is that the state is trying its best to eliminate wrongdoing. Corruption is due to human weakness, a result of the rotten apple in the barrel, or in Burmese, a rotten fish in the boat.²⁵

Official speechifying on corruption in Myanmar is a distinctive form of what James Scott has described as a public transcript, constituting a ‘self-portrait of dominant elites as they would have themselves seen’, which, ‘While it is unlikely to be merely a skein of lies and misrepresentations … is, on the other hand, a highly partisan and partial narrative.’²⁶ In the public transcript, benevolent, enlightened men exhort their subordinates to aspire to their own high standards. They do not deny the existence of corruption. On the contrary, they acknowledge it, and, in a sense, they celebrate it. This thing called corruption helps the dominant elite to naturalise its own authority. Its anti-corruption talk affirms that superiors are ethical, subordinates are not; superiors strive for clean and good government, subordinates sully it. The existence of a thing called corruption obliges functionaries to participate in what Lisa Wedeen characterises as the politics of pretence, the politics of ‘as if’, which ‘produces guidelines for acceptable speech and behaviour; … occasions the enforcement of obedience [and] induces complicity’ in techniques for domination.²⁷ The transcript can be sustained only when an audience tacitly goes along with it. And where the message is delivered to judicial personnel, not only is the audience clearly identifiable; it is also clearly obliged to go along with the performance.

Pretence and punishment

Leafing through over a decade of Supreme Court records while researching this book, I came across the following warning in a circular sent to courts around the country:

This warning is a compelling illustration of the ideal of law and order in miniature, of ‘the art of the state’s splendor as visible order and manifest force’.²⁹ The state’s splendour depends on its personnel maintaining an appropriate image for the cameras. Sloppy, uninterested officials are dangerous. The whole point of such events is that they are occasions to demonstrate obedience, to participate in the politics of pretence.³⁰ Appearances matter entirely. Yawn or doze off when the chief justice is talking, and you will be reprimanded.³¹

The politics of pretence, like the public transcript, require subordinates to produce a credible performance.³² Where a top official preaches about corruption, it will not do to have a crowd of manifestly uninterested subordinates. Similarly, a judge or judicial bureaucrat must be able to demonstrate an ability to maintain a semblance of orderliness in court. A judge whose court fails to produce reasonably credible performances is a liability. No advantage is had in keeping her employed. By the same token, a judge who when confronted with allegations of wrongdoing can point to a record of orderliness and efficiency stands a good chance of escaping sanction, of mitigating punishment, or of having punishment reviewed. As one removed judge seeking to get his job back put it,

Court records show that retention of personnel is as much an institutional concern as is removal of subordinates who are inept at maintaining a semblance of orderliness, if not more so. Hence, despite repeated reprimands, some judges and court staff continue holding office, while others succeed in returning to posts after having been removed, through sufficiently convincing restatements of their commitment to maintain a semblance of orderliness.

Orderliness, for the purpose of this discussion, is both general and specific. Orderliness in dealings with one’s superiors, with court staff, and with the public ensures smooth operations of the administrative continuum through courts. This general orderliness encompasses matters of dress, speech, and manner. A judge failing to wear the correct attire, hearing cases in chambers, or having clerks do work that is not their responsibility is failing to do the minimum required. A judge should also be cordial with whoever is in the courtroom, and avoid using impolite, threatening, or abrasive language with peers, superiors, and parties to cases.

Judges who fail to maintain general orderliness risk their jobs – like one who habitually bickered with his court staff, behaved rudely towards his superiors, and slandered the justices of the Supreme Court.³⁴ Resentful and annoyed subordinates and peers will look for opportunities to make complaints, as in the case of a township judge who went around saying he would punch a superior trying to find fault with him, and repeated the threat in an official meeting.³⁵ Regardless of who was really at fault, by failing to maintain appearances, he gave his opponents the material they needed to motivate higher-ups to act on their complaints. Luckily for him, an investigatory tribunal recommended that he be let off with a warning, since the incident amounted to a single infraction and was not part of a pattern of abusive behaviour.³⁶

Because of the emphasis on morality in the public transcript, court records also caution judges against drinking heavily, turning up at court drunk, or molesting their counterparts publicly. Sexual liaisons that attract undue attention result in reprimands. The Supreme Court has sacked married judges it has found to be indiscreet in their extramarital affairs.³⁷ In 2009, it dismissed a judge after he took a second wife when married.³⁸ The apex court reprimanded another judge after he took one of his clerks to a new posting and cohabited with her.³⁹ And in 1996 its director general recommended dismissing two judges for having an affair. One was married with children; the other had absconded from her court to be with him.⁴⁰

Public sanctions of women judges for wrongdoing are generally less precise about the nature of the offence, but are more condemnatory in tone. In one, the Supreme Court avoids the details of a judge’s relationship with a retired colleague, but pointedly refers to their thirty-year age gap.⁴¹ In another, it vaguely describes a deputy district judge as having engaged in ‘abnormal’ relations with her senior clerk despite repeated reprimands. The gazetted summary of the case does not spell out the abnormality, but stresses that as a woman judge she had special responsibility to keep her marital affairs in order.⁴² The inference is that men are prone to bad conduct and require supervision, but women should know how to behave. Women set the standard for the menfolk to follow. When a woman fails to maintain the semblance of orderliness, her failure is more damaging than a man’s.

Judges can meet with reprimands if for whatever reasons they forget that the ideal to which they are beholden subordinates their institutions to other parts of the state. An orderly judge recognises and accepts his subordinate status; a disorderly one does contrariwise. The Supreme Court chastised a judge who had the nerve not to attend a ceremony organised by the district council nor to send anyone in his stead or offer a reason for non-attendance.⁴³ It ordered another judge from his post for frequently going out to drink during court sessions; however, it also noted that just three weeks earlier he had ‘spoken disrespectfully to the township police commander’.⁴⁴

Court records also narrate cases in which local officials have lodged criminal charges against judges apparently due to interpersonal conflicts.⁴⁵ In these cases too, judges may have wrongly estimated the extent of their authority and status relative to office holders in other institutions. And, any judge who has the temerity to rule against a military officer ought to be prepared for repercussions. One judge learned this lesson the hard way after throwing the submission of a local battalion commander over a financial dispute out of court.⁴⁶ The outraged soldier sent excoriating complaints to the Supreme Court and his military superiors, demanding the judge’s head. Non-judicial personnel, including soldiers, can and do initiate investigations to remove judges from office. Judges come under the same general code of conduct as other civil servants.⁴⁷ Anti-corruption statute does not differentiate between judicial and non-judicial personnel when investigating civil servants for malfeasance.⁴⁸

Because the politics of ‘as if’ are politics of superficial compliance, they also require a specific form of orderliness associated with following orders from above. Any judge or judicial bureaucrat can lose her job for being uncooperative with superiors. A judge in the capital of Mon State ought not to have disregarded orders that as cases involving illegal fishermen were ‘policy cases, the [state council] had given direct instructions warning that executive and judicial tasks were to be conducted in harmony’.⁴⁹ The state court had ordered subordinate judges to complete these cases as quickly as possible, and to send detailed reports on any matters that might impede the progress of rapid convictions, for instance, where they saw cause to grant bail. The judge in question proceeded to grant bail for legally justifiable reasons, according to ordinary procedure, without recourse to the state court.⁵⁰ When lectured for a second time about the orders from above on executive and judicial harmony, she reportedly argued with her supervising judge and persisted in granting bail, leading the state court to take the matter to the Supreme Court.

Orderliness is maintained in moneymaking through tacit advice to personnel on how to go about earning appropriately, and what lines not to cross when profiting from their positions. As in other aspects of professional life, they must follow certain procedures and participate in the politics of ‘as if’ when making money. For instance, judges ought not socialise with parties, at least not in public. A judge who allegedly enjoyed karaoke with the party to a case he was hearing and slept with a woman who just happened to have come along for the evening could not, for example, be said to have met with this proviso.⁵¹ Nor could two judges seen enjoying regular meals with the defendant in a case at their downtown Yangon court.⁵²

Judges also ought not flagrantly or ‘excessively’ take money from parties to cases.⁵³ Inflexibility over prices is not good either, unless the price is for a commonplace service and is relatively small and fixed. Judges do need to be willing to take negotiation seriously, and accept less money from parties to cases than they demand, especially where the people paying the money really are at the limit of what they can afford. Some even make a schedule of payments and outcomes so as not to mislead parties into thinking they have made all the payments necessary, when more will be expected later.

Moneymaking ought to be restricted to the routine business of cases in court. A judge who impounded motorcycles parked at the front of his house and demanded money from the owners to get them back went about things the wrong way.⁵⁴ He had ample opportunities to make money through routine activities, and should not have been so bold to think that his authority gave him a licence to make money from whomever he liked, or in this instance, disliked, wherever he liked. Another judge – whom an administrative council drafted into a special operation to register unlicensed boats in Myeik, near the southern border with Thailand – joined with a court clerk as well as at least a dozen officials from forestry, transportation, fisheries, revenue, and customs agencies to make a large amount of money off the vessels’ owners and operators through extortion. The judge and other personnel involved apparently failed to realise that they would be under more scrutiny than when undertaking routine tasks.⁵⁵ A judicial tribunal convened to investigate found that although the clerk and judge should be criminally investigated, none of the evidence pointed to the involvement of the township judicial department head, who ‘although he had responsibility for the supervision of his subordinates … had carried out his duties thoroughly and without dereliction’.⁵⁶ Whether or not the more senior judge was also getting his cut from the moneymaking scheme, he had comported himself correctly. He had proven sufficiently convincing in his performance of orderliness to satisfy the tribunal that he deserved to remain in office.

The admixture of publicity and ambiguity in orders issued against judges and judicial bureaucrats speaks to how the semblance of orderliness is maintained in Myanmar’s courts. On one hand, judicial personnel have long been routinely reminded that failure to comply with instructions from above can lead to criminal prosecution. On the other, the lack of clarity about the actual reasons for the dismissal of personnel in many cases and vagueness about what constitutes immoral conduct liable to sanctions mean that nobody can ever be certain that his job and reputation are secure.

Through these subtextual signals judges are reminded that their moneymaking activities are tolerated and to an extent encouraged, provided they are orderly. As Lon Fuller has pointed out, this managerial method increases a superior’s power over subordinates by allowing him opportunities ‘to obtain gratitude and loyalty through the grant of absolutions, at the same time leaving him free to visit the full rigor of the law on those he considers in need of being brought into line’.⁵⁷ Obscurity about what constitutes an offence and inconsistency in enforcement of rules are not flaws or oversights. They are essential to maintain practices consonant with the law-and-order ideal.

Moneymaking is made orderly when calibrated through arrangements with other professionals, such as lawyers known as nèza shene, who do not move around dealing with cases in different courts, but are intimate with clerks, judges, prosecutors, police officers, and other officials in a single township or district, and are trusted to make deals locally. Sometimes these lawyers are relatives of police officers. The police nominate nèza shene to accused persons who do not already have legal counsel and who appear to have the means to pay. In exchange, nèza shene give an amount of case fees from nominated clients back to the police as a commission. Judges and court staff can also nominate nèza shene, and they also get a percentage of the lawyer’s earnings as a commission.

A case broker, who might be a public prosecutor, court clerk, or relative of a judge, is an alternative to nèza shene. Official documents and speeches have long recognised the use of brokers. In 2008, the chief justice issued an instruction condemning, not for the first time, the prevalence of brokers in and around court premises. He described them as hanging around waiting for people to offer advice ‘from hiring a lawyer, laying charges, applying for bail, submitting evidence, up to who to approach and how to do it to win a case’ or how to delay and spoil a case that cannot be won.⁵⁸ His words echo those of the 1940 committee report: ‘Magistrates and judges not infrequently receive money in person, or through their wives or mistresses, or through friends at clubs; professional touts, clerks, servants, and village headmen are often used as intermediaries’.⁵⁹ The language and practices associated with brokerage of criminal cases have evidently remained efficacious throughout the seven-and-a-half decades since.

Lastly, orderliness is maintained while making money through a language of disguise. Brokers, lawyers, prosecutors, and court clerks adopt jargon to discuss openly the buying and selling of cases and case outcomes. Some of it consists of euphemistic, innocuous-sounding exchanges, such as when a judge asks a colleague which hotel he stayed at on a recent trip. This question invites his counterpart to indicate how much money he is making on the side. Some is generic slang, such as the expression ‘to water’ something as a reference to giving money. If somebody loses a case, his friend may observe, ‘You’ve lost the case! You didn’t water it!’ Or, a lawyer may advise a client that if she wants to win a case then, ‘You’ll have to water it well.’ Other expressions like ‘no oil without beans’ are used to stress to a client that without investing in a case, it will not get resolved favourably.

Professionals also use perverted legalese, of which a good example is ‘section 870’. A lawyer talking with another in front of the courthouse might suggest section 870 as a means to get the client released from charges. To the passerby unversed in law, it sounds as if they are talking about a technical matter. In fact, section 870 is nowhere to be found in the statutory codes. This section is from a different type of code, for three letters of the alphabet that resemble the Burmese numerals for 8, 7, and 0, which when spelled out mean ‘to pay respects’, gayawa pyu, a euphemism for a payoff. Section 870 inverts the notion of respect for a superior, and respect for the law, by situating both in a moneymaking discourse that feigns legality. It gives the appearance of respectful adherence to law while ridiculing it.

Similarly, personnel refer to ‘part four’, a-paing le. Many forms and documents consist of parts that must be completed for the criminal case to proceed. A police officer or court clerk filling out a form may instruct the defence lawyer that parts one, two, and three are completed, now it is time to do part four. This ‘part’ is not in the documents. It is word play in which the vowel sounds associated with the words ‘part’, a-paing, and ‘four’, le, are swapped to take on the meaning that it is time to give something, a-pe laing, literally, ‘giving line’. The numerical reference can also be dropped, the officer requesting payment saying something along the lines of, ‘My part is done; only your part is needed.’

The language of negotiation, of coordination, is what Scott calls the language of ‘a politics of disguise … that takes place in public view but is designed to have a double meaning’.⁶⁰ Even as it appears orderly, it mocks courts and also the notion of legality. It inverts and mimics the official narrative, but also makes a concession to the politics of ‘as if’, acknowledging the necessity for the semblance of orderliness. The purpose of these politics is not, after all, to be believed. They are powerful because they are not believed yet they are compelling.⁶¹ They force participants to speak euphemistically, to maintain an appearance of docility and amiability towards the dominant elite, no matter how much contempt they may feel for them.

Control and coordination

Every official involved in a criminal case has at least a small amount of control that he can use to get a payment. Control is of different types. In this section, I will discuss just two: one over the physical body of the accused, and another over the material evidence of a crime. The first is a type of control that I looked at in the last chapter with reference to the use of confession and torture, and here will extend to the practices of the marketplace. The second is a type of control over the production of evidence ‘whenever and however the law as procedural code demands, rather than as a reality preceding’ it.⁶²

The most effective means to get control over a person in a criminal case is through control over the body: through confinement or the prospect of confinement. Any government office in Myanmar is a place of latent confinement, a place for the ordinary person to avoid, a place from which one has to struggle to get free. The longer one stays inside, the harder it becomes to leave. As more officials and agencies get involved, everybody wants something to let you go, and the transactions become more complicated and expensive.

Here is one example of a successful effort to get a person out of custody quickly, which also illustrates how practices of control and coordination, or negotiation, start from the moment the police appear on someone’s doorstep. The story is from 2005, in a northern town on the border of China, where narcotics are rife and criminal cases for possession of narcotics are common, not just because of the quantities of drugs but also because of the need for high numbers of convictions and exemplary sentencing – as discussed in Chapter 4. According to the brother-in-law of the person arrested, policemen came to a shop where a young man was working and accused him of having illicit drugs. At the time, the brother-in-law asked the police if the accused man would be released. The police inspector leading the arrest replied, ‘We’ll give you an answer at the station. We’ll let you know what needs to be done for our side to settle the case.’ The quick-thinking brother-in-law went to get a local official to play the role of broker. The official went to the station with the brother-in-law, and took the inspector to an eatery nearby. After the official went home and the detainee’s family came to see him, he reassured them that everything would work out, as retold here in a signed written narrative of the sequence of events:

The policeman released the detainee from the lockup that day. Having surrendered his control over the body, he had only the threat of impending action to keep the young man and his family from making complaints about the negotiation, or ‘coordination’ of the release – the word being the same for both, hnyi-hnaing.

Sometimes, the police are just looking for opportunities to let a body go, and the coordinating involved is relatively effortless, even if the amounts demanded are not trivial. In a written complaint of mid-2013 to the national human rights commission, for instance, one detainee who alleged that he had already been assaulted at a police station in Mandalay described being railroaded with a co-accused into a transaction for a quick reduction of sentence inside the courthouse:

The defendant learned that his payment had bought him a seven-day prison term for a misdemeanour that could otherwise have carried up to three months in jail. The relatively high amount he was prepared to pay might in part have been due to his confusion and fear of what the police would do if he did not cooperate, and in part due to the location – a lucrative, business-oriented city where the premiums are high. Notably, the police did not offer him an opportunity to get out of the case completely, perhaps from concern to balance the needs of the marketplace with the need for fast and easy convictions to maintain the semblance of orderliness in processing of criminal cases, as discussed further below.

The threat of control over the body is also a source of power for court staff negotiating prices for case outcomes. In a similar scenario to the one above, a judge and court clerk in Yangon allegedly advised a man accused of running an unlicensed bodyworks that if he paid them and pled guilty to a charge then he would get off with a fine, but if he fought the case and lost he would go to jail.⁶³ He said he watched court personnel divvy up an initial payment, which bought him two weeks to come up with the remaining money. After the time was up and he could produce only one-fifth of the amount, the clerk gave an extension, whereupon he gave most of the amount requested and begged the judge to accept it since he could not find any more.

Control over the body gives its custodians opportunities to earn money, large amounts and small. Wherever people encounter junior custodians, they have to pay little amounts of money for delivery of food and medicines to detainees, and for opportunities to meet with them. Some families also pay superior officers not to torture or mistreat the detainee. They may also pay the crime-reporting officer to put the case to the top of the list that the police will submit to court, and thereby jump the queue for bail.

Wealthy and influential detainees can have a different custodial experience from everyone else. A lawyer recounted one case to me about the son of an army officer and a friend in northern Shan State who in 2008 faced charges for the attempted rape of a classmate. As the victim was from a well-known family in her locality, she pressed a complaint with the backing of some officials. The police had little choice but to arrest and open cases against the alleged perpetrators. But once in custody, the two young men did not stay in the cells with other detainees. The station commander put them in a room next to his office normally reserved for playing cards and drinking. Both of the accused reportedly had access to whatever food and alcohol they wanted, as well as to visitors. A court quickly let the officer’s son out on remand, due to a supposed medical condition. It later acquitted both men.

Research conducted during 2012 at the main court complexes and township courts in five states revealed patterns in the practices of moneymaking through control over the body. Like the VIP detainees in the abovementioned case, remanded detainees in Loikaw, the capital of Kayah State on the border of Thailand, could avoid being sent to prison by paying from fifty to a hundred thousand Kyat to be kept at a room set aside for the purpose in the police station. The room was not luxurious, but it was better than prison, where remanded detainees feared becoming prey of seasoned inmates.

At many places, police and court officials have a lively trade going for the granting of bail. The Criminal Procedure Code distinguishes between two types of offences, one for which bail should be given automatically and another for which a court order is required under section 497(1). Defendants commonly have to pay for bail in the latter type of case. Complainants can also pay to prevent defendants from going free. During 1996 in a town near Yangon, for instance, a woman whose daughter had eloped with her lover got revenge by paying for the arrest and detention of the young man involved and his four brothers.⁶⁴ Foolishly, the judge neglected to shift the charge and denied them bail under a section of the Penal Code for which he should automatically have granted it, giving the detained men strong grounds for complaints against him after they got out.

Going rates for people who want to pay to get out on bail fluctuate from place to place. In Loikaw during 2012 lawyers advised that typically two to three hundred thousand Kyat would do it, with two-thirds of this amount for the judge and a third for the public prosecutor. The bench clerk, who can change the sequence of cases posted for hearing and speed up or delay processing of paperwork, would receive ten to twenty thousand Kyat; the police, thirty to fifty thousand.

In Mudon, a town in Mon State further to the south, the bail rates for offences like causing hurt by dangerous weapons under section 326 of the Penal Code or assault on a woman ‘with intent to outrage her modesty’ under section 354 were about 50 percent more than in Loikaw, although the subsidiary fees of the police and court clerk were roughly the same. The prices in Sittwe, capital of Rakhine State, on the western seaboard, were at least as much as in Mudon; however, lawyers indicated that in cases where an accused was patently innocent or unable to pay, judges and public prosecutors would sometimes settle for less than the standard amount. In Hpa-an, the capital of Karen State, the prices were lower: a minimum of a hundred thousand Kyat for the judge, and around eighty thousand Kyat for the prosecutor, with five to ten thousand Kyat paid to the court clerks and prosecutor’s clerk.

Cases are managed and coordinated in similar ways across much of the country, but differ regionally. At a township in Chin State, on the border of India, professionals in 2012 reported that most cases were sorted out through payments in the police station, with relatively few matters going to court. The amounts that the police demanded were also modest – around fifty thousand Kyat to close a vehicle accident case, a bit more if the vehicles involved were unregistered; roughly the same for cattle smuggling; and, twenty to thirty thousand Kyat for minor assault. Professionals attributed the low amounts and tendency of police to keep matters out of court to local customs and fraternal feelings among members of ethnic minority groups there; however, the fact that the region is relatively poor and the money economy still relatively small may be contributing factors.

In certain types of cases where material evidence is unusually important, the control and coordination dynamics differ somewhat from other cases. Narcotics cases may involve chemical analysis of seized drugs or, in the case of users, urine. Under section 15 of the 1993 Narcotic Drugs and Psychotropic Substances Law, a drug user who fails to register voluntarily for rehabilitation can go to jail for three to five years. Police officers collect urine from accused users and send it for chemical analysis. A lab tests the urine and sends a result to the court where the case is posted. Depending on the positive or negative finding, the judge convicts or acquits the accused. In effect, a finding of guilt or innocence in these cases is made at the lab. The judge has limited discretion to decide on the sentence. So in cases lodged against alleged drug users, unlike many others where confession is the best evidence, control over the outcome of the case is contingent on control over the material evidence.

Professionals working on narcotics cases in the late 2000s said that the chemical analysis labs interpreted government policy on deterrence to mean that the default result for urine analysis should be positive. Labs offered negative results in exchange for payment. The 2009–10 starting figure in Kyat for a negative result was around one hundred thousand per urine sample, and a million per sample in the case of seized drugs: at roughly a hundred U.S. dollars and a thousand U.S. dollars respectively, small change for those accused who can afford to pay, including people actually trading in drugs. They are not affordable amounts for anyone with no money, contacts, and knowhow, like an alleged user brought to one station in the north during 2007. A court sentenced him to five years’ imprisonment for a positive test result somehow taken from a sample of dirty water that he had provided the police from the toilet bowl at the station, where he was unable to urinate due to an infection.

Chemical analysis plays a part in other types of cases, such as murder, grievous hurt, and rape cases. Lab results are relevant, but trial outcomes do not hinge on them. Judges can also call for expert witnesses, as provided in sections 45 to 49 of the Evidence Act, such as in cases where persons are accused of trafficking items other than narcotics. Some parties pay expert witnesses to provide false evidence, such as to testify that tiger bones found in baggage on a train and apparently being taken to be sold for medicines were bones of another animal; and jade being smuggled illegally was some other, non-valuable, stone. The police also can switch real evidence for fake evidence, either with the complicity of the expert witness or without her knowledge. Township courts generally lack secure arrangements for keeping evidence during trial. Material evidence may be held at the bailiff’s quarters on the court premises or at the police station. At either location, police officers and court staff have ample opportunities to damage, misplace, or sell stored items.

When bringing charges of possession, trafficking, and cultivation of narcotics, chemical labs’ findings are also relevant, but unlike in users’ cases, courts can admit and interpret a range of evidence to reach a verdict. For instance, if a group of people stand accused, a judge can arrange to acquit the ringleaders or real dealers and convict the minor offenders or substitutes. However, in cases where dealers have been caught red-handed with large quantities of narcotics and equipment for its manufacture, like one case in the capital of Shan State in 1994, this method might not be enough to insulate the judge from criticism.⁶⁵

One professional who handles narcotics cases in 2010 said prices vary for acquittal under different offences in the Narcotic Drugs and Psychotropic Substances Law. Many factors affect outcomes, including the severity of the crime, the number of persons involved in the case, and the police units investigating. For example, a township or district judge in the north of the country might be paid anywhere from one to three million for acquittal in cases where the defendant is charged with possession of prohibited materials or implements under section 16(b) of the law, which carries a sentence of five to ten years in jail. In 2009–10 prices, for a charge of possession with intent to sell under section 19(a), which carries a minimum sentence of ten years, an acquittal can cost up to twenty million in payments to judges alone. Thus, narcotics cases contain many meeting points between the semblance of orderliness required of courts and their moneymaking imperative. One does not simply give way to the other. The two intersect and complement one another, communicate with one another, and reinforce each other throughout the business of criminal justice.

The business of criminal justice

Control over the body of an accused criminal, or over the material evidence of a crime, is but one feature of the larger business of criminal justice in Myanmar’s courts that pulls in and envelops accuser and accused, demanding something of each at every opportunity. Officials impose ‘fees’ on the complainant to lodge a case, to have police investigate, to have a superior officer keep a watch on case progress, and to have a public prosecutor handle it properly. The defendant may also pay fees to offset fees the complainant has paid, in addition to fees for release from custody, as discussed in the preceding section.

Paperwork is expensive. Both sides pay for documents to be completed, for files to be signed and sealed, and for release and certified copies of records. As in the case of the public enemy, paperwork moves the case along the administrative continuum; only now it passes towards a negotiated outcome. Paperwork is necessary to ensure that everyone handling the case can earn something along the way. Take the cost of paperwork to move a minor criminal case from a township court, for revision at a district court in Mon State during 2012. In the township court, the costs were 2,000 Kyat to get the court bench clerk to release the case file; 1,000 Kyat for another clerk to certify it; 1,000 Kyat to the bailiff; and 100 Kyat per page for another clerk to photocopy it. In the district court, they were 5,000 Kyat to leave the file with the relevant clerk; 2,000 Kyat to the court clerk to issue a summons; and, 5,000 Kyat to deliver it. Optional fees cited for special services include 50,000 Kyat to get the file referred to a preferred judge and 20–30,000 Kyat to get the ruling typed on a computer – a fee worth paying for anyone wanting to have neat, legible records.

Whereas paperwork attracts standardised charges, in negotiation for case outcomes things get more complicated. Coordination of deals to shift charges, acquit, and reduce penalties can also get pricey. In rape cases, defendants like the VIP detainees mentioned above generally aim to pay for acquittal. The threat of a ten-year sentence under section 376 of the Penal Code makes the cost of getting off high; however, professionals say acquittal is relatively easy because as in the colonial period the procedural and attendant obstacles to a successful complaint are formidable. Many judges also seem to share the prejudices of their colonial-era predecessors, such as one described in internal records as having brazenly freed a rapist, while treating the complainant like the suspect.⁶⁶ Additionally, the paucity of forensic analysis in Myanmar and the heavy emphasis on witness testimonies, which may be unclear, incomplete, and contradictory, make it easy for a judge to release an accused on receipt of appropriate payments.

In 2010–2011, the cost of acquittal from a single charge of rape in a court of first instance situated in a large town ranged from 1.2 to 3 million Kyat, or about 1,200 to 3,000 U.S. dollars. A professional familiar with rape cases said payments were made approximately as follows: 200–300,000 Kyat to the crime recording officer to process the case quickly, and around the same amount to the prosecutor, paid so as not to examine the case thoroughly in court; half a million to a million for the district judge to acquit; 1,000 Kyat to register the defence counsel’s power of attorney with the police station where the defendant is held; 3,000 to 4,000 Kyat to the bench clerk each time the case is posted for hearing, paid to make sure it does get heard at the appointed time; 3,000 Kyat to the police transporting the accused to and from the court each hearing, so as not to assault or abuse the accused; 1,000 Kyat to the police guarding the accused in the court, for the family to meet with him and give food and words of encouragement, and the same amount again for the defence lawyer to meet and discuss the case before each hearing; 1,000 Kyat each time the family takes food to the accused in the lock-up and 3,000 each time the accused is inside prison, or 500 just to see the person for a couple of minutes through the bars, without giving anything. In some instances, the defendant may be advised or expected to pay off officials at the next level up in the hierarchy, to deter any appeal or to ensure an appeal is not successful.

Although rape cases tend towards acquittal through these and other methods, because they also often attract public interest, judges need to be careful to maintain the semblance of orderliness and not deliver a ruling that generates hostility or creates problems higher up. In one case from Yangon during the early 1990s, the uncle of an abducted and raped high school student made complaints against the township judge after she acquitted the accused, despite ample evidence on which to convict. He does not exactly say that the defendant purchased the ruling; however, he is clear enough about what he thinks happened when he writes that the accused ‘showed off his people and wealth, bringing lots of individuals unrelated to the case to the courtroom, and driving up in a variety of cars’, as well as using ‘every other means’ available to destroy the case.⁶⁷ In another case from a town north of Yangon during the same period, a judge convicted a man of raping a mentally infirm teenage girl but sentenced him to a short prison term, which may have covered the time already spent in remand. The mother wrote to the chief justice: ‘At a time that tasks for the rule of law are being prioritised, that educated honourable judges instead of imposing an appropriately heavy punishment for the serious crime of rape … have imposed a sentence of only six months is wrong in law and also in [the eyes of] society.’⁶⁸ A deputy director general of the Supreme Court who reviewed the case agreed, and recommended that the judge be disciplined.⁶⁹

Fatal car crashes carry custodial sentences for the negligent driver – or someone put forward as the driver on the real driver’s behalf. Professionals say that unlike in rape cases acquittal is not so easily bought. A driver charged under section 304A of the Penal Code with ‘doing any rash or negligent act’ that causes death faces a maximum of seven years’ imprisonment. The section does not stipulate a minimum period. Therefore, negotiations under this charge tend to concentrate on minimising the amount of time to serve. Payments to the judge for reduction of sentence are annualised. In Yangon during 2009–10 they were around one to two hundred thousand Kyat per year.⁷⁰

The negotiations proceed roughly like this: the judge informs the defence lawyer that the accused will be sentenced to six years in prison; the defendant arranges to pay a million Kyat to the judge, and, at a rate of two hundred thousand per year, the sentence is reduced to a single year. The defendant may have been in remand for six months from the time of arrest to the court verdict. When this time is deducted from the sentence, he has to serve only six months before release. If the victim was friendless or her relatives penniless, the court only needs a conviction on paper and can release the accused on the day the verdict is read out in court through the ‘sentenced-released’ method, cha-lut.

Cha-lut is a pithy term referring to a technique enabling judges to maintain a semblance of orderliness while also coordinating (hnyi-hnaing) case outcomes. Using this technique, judges convict accused persons but pass sentences less than or equal to the total amount of time the accused has already been in custody awaiting trial, so he is immediately released when the court passes sentence. The accused is happy to go home, the judge and prosecutor make money and get a conviction to add to their statistics, and the defence lawyer has a satisfied client.

An accident where someone does not die but where one party suffers hurt or grievous hurt falls under sections 337 or 338 of the Penal Code. Like section 304A cases, each entails a possibility of imprisonment, for a maximum of two or five years respectively. In the former, an accused person can negotiate with the police and with the injured party, to settle the matter without it going any further. If one party is hospitalised with serious injuries, then a duty police officer attached to the hospital should record the case, and it will go into the paperwork. The blameworthy party will then have to pay officials to escape imprisonment. A driver who sped through an intersection near a university campus on the outskirts of Yangon and ran onto the footpath, careening into a group of students, seems to have used this method. The judge acquitted him of section 337/338 offences, reasoning he had swerved to avoid another vehicle, that the injured students had jumped from the footpath and had been hit on the road, and that the police had not presented any evidence to show the defendant had been driving recklessly.⁷¹ Unfortunately for him, the students’ complaints to higher authorities had some effect. Police officers from the Criminal Investigation Department reinvestigated.⁷² A bureaucrat in the office of the then ruling military council sent instructions to sack and prosecute the judge, prosecutor, and a police officer.⁷³

Occasional setbacks for officials notwithstanding, throughout the 1990s and 2000s vehicle accidents remained popular revenue raisers. Here is an example of the expenses for the defence arising from an accident in a northern town during 2009: 50,000 Kyat to be on good terms with the commander of the police station handling the case, the same for the traffic policeman who came to the scene, and the same amount for bail and for the vehicle involved not to be impounded; 500,000 Kyat for the investigating officer, who arranged to resolve the case at a single sitting; 100,000 Kyat for the judicial medical officer recording details of the victim’s injuries, to write something favourable for the defence, and another 50,000 Kyat to say something favourable in court; 10,000 Kyat for court clerks; 5,000 Kyat for the prosecutors; 6,000 Kyat for the crime-recording officer at the police station; 20,000 Kyat for the traffic police first on the scene; and, 87,000 Kyat to the injured party as settlement. The total cost of direct payments in this case was around 928,000 Kyat, nearly a thousand U.S. dollars.

The summary of an official investigation into a judge in upper Myanmar provides another good illustration of the opportunities judicial personnel have to make money from car accidents. In this case, from 1994, police charged both drivers of the crashed vehicles – one a light public transport vehicle – with rash driving under section 279 of the Penal Code.⁷⁴ The township court opened a case and remanded the two in custody. According to investigators, a court broker advised each side that for 10,000 Kyat – a considerable sum at the time – they could get out of custody with a quick conviction and a fine instead of a prison sentence. The conductor of the public transport vehicle made two payments to the judge directly, totalling 9,000 Kyat, while the owner of the other vehicle paid just 3,000 Kyat.

Another method of conducting the business of criminal justice in Myanmar involves the police initially registering or threatening to register charges under sections carrying heavy penalties and then negotiating downwards to lesser offences, or where possible negotiating to drop the charges altogether. In a car crash resulting in injury, for instance, the accused will seek to shift the charge from grievous hurt under section 338 to ordinary hurt under section 337 and then try to negotiate (hnyi-hnaing) to get the charge lifted.

Among other types of cases negotiated in the same manner, particularly in commercial centres such as Yangon and Mandalay, are cases under sections 406 and 420 of the Penal Code. Section 406 is criminal breach of trust. Section 420 is cheating. The legal difference between the two is beyond the scope of this discussion.⁷⁵ What matters is that the fine distinction between one and the other enables parties to cases under these sections to enter into a series of negotiating games in which all personnel can make money.

Suppose a businessman has a conflict with another businessman, a former partner, or a competitor; a building contractor, land speculator, or importer-exporter. He goes to the police and pays them to open a case against the other businessman under section 406. This section carries no more than three years’ imprisonment. Section 420 carries up to seven. On the basis of the punishment alone, section 420 would be the more onerous offence. But complainants lodge cases under section 406 because under this charge an accused does not automatically get bail; under section 420 he does. A defendant taken into custody under section 406 must offer some grounds for release on bail, or get the case shifted to section 420 before proceeding to protracted coordination (hnyi-hnaing) to deal with the charge.

A professional who works on commercial criminal cases in Yangon gave the following estimates of costs in 2009–10 for someone lodging a complaint over unlawful possession of a car in a hypothetical section 406–420 case, the car valued at around thirty million Kyat, or a bit more than 30,000 U.S. dollars. To begin, the cost for the complainant to open the case at the police station, paid to the police, would be 500,000–1,000,000 Kyat. Another 200–400,000 Kyat would be paid to the investigating officer to recover the car from the other party as quickly as possible. As the car would initially be impounded, the complainant would have to pay to get it out. Once impounded, not only would the complainant be unable to use it, but it also would either deteriorate sitting in an open compound or have parts go missing, or both.⁷⁶ The judge for his part should accept a reasonable amount if offered. He should not sit on a vehicle for too long and cause a disgruntled party to complain elsewhere, as apparently happened in a case in Mandalay over which a judge was removed from office.⁷⁷

With the car out, a further 100–200,000 Kyat would be paid to the crime-recording officer at the police station to submit the case to court promptly. Half a million to one million Kyat would be paid to the prosecutor to give advice for the case to proceed as a criminal case. The judge would get 3–4,000,000 Kyat. Once the case is decided, another 200–500,000 Kyat would be paid to the prosecutor not to take the case to a higher court for revision. And on top of all the above expenses are the pocket monies throughout the trial process: voluntary donations to whatever funds and causes are being promoted at the court and police station; costs of the judge’s recreation travel and other leisure activities while the case is being heard; small presents for each of the officials working on the case; and tea and cake monies for the court clerks on each day the case comes up on the docket, which add up to another 2–3,000,000 Kyat. In total the cost to recover the car, if everything goes to plan, would be from around 7,000 to over 12,100 U.S. dollars, although the amount should not exceed about one-third of the vehicle’s market value.

In cases that for one reason or another may attract attention from superiors, more creative techniques may be necessary, but participants in the marketplace still find ways to make money and satisfy demands for a semblance of orderliness. One lucrative technique is ‘double cropping’ (nit-thiza) through the appeal process. The technique has a long pedigree, being mentioned in the 1940 report discussed earlier, whereby a

Using this technique, which takes its name after cultivation of fertile land twice in a single year, a lower court judge accepts money not to acquit but to impose a lesser sentence on conviction and to arrange for the sentence to be overturned or revised on further payments made on appeal in a higher court. As the court of first instance and the appeal court both make money from the same case, it is a double crop.

In one case during 2007 officials resorted to double cropping to make a tidy profit and because they were worried about public backlash if they acquitted the accused in the court of first instance. A special drug squad swept into a town on the border of China and arrested a dealer in league with the local police. Because of outside agency involvement and the relatively high profile of the case, the judge explained to the defendant’s lawyer and prosecutor that he could not acquit. Instead, they agreed he would convict the accused, but prepare a flawed verdict with the connivance of the prosecutor. The judge allowed the defence attorney to ask leading questions; and the prosecutor arranged for witnesses to turn hostile, asked questions that supported the defence, and failed to cross-examine witnesses. The lower court notified the appellate judge to look forward to a double crop, and he released the accused because of the flaws in the prior verdict. The prosecutor did not appeal the acquittal. The dealer settled down in another township. He only returned to his hometown after his lower-court sentence had expired, suitably contrite, and also, according to one source, bankrupt due to the heavy costs the double-cropping officials had imposed. In 2012, he was seen running a noodle stand and had reportedly given up on the drug business: an unqualified success for the institutions of law and order, if not for the rule of law.

Conclusion

The public transcript on corruption in Myanmar gives the appearance of creating barriers to moneymaking through criminal cases. In fact, it is concerned with the due regulation of moneymaking practices: the provision of guidelines for coordination and control that will work to the advantage of the individual judge or policeman, and the sovereign power. It aims primarily not to address practices identified as corrupt but to affirm the imperative for law and order through a model of probity in which personnel follow orders as required, demonstrate compliance, and maintain an appearance of orderliness.

Rather than prohibiting moneymaking through criminal cases or even papering over what goes on in Myanmar’s police stations and courts, the politics of law and order tolerate certain types of disorder, creating ‘simulacra’ of order through parallel modes of production and profiteering, speaking and doing.⁷⁹ Unlike the rule of law, law and order can permit departures from law without damaging its essential qualities, including through practices for the making of money where these maintain a semblance of orderliness.

The politics of law and order have exacerbated and institutionalised moneymaking practices throughout Myanmar’s courts, and have honed the skills of practitioners who are keen to maintain a semblance of orderliness and also get ahead financially; however, the lineages of these politics and their attendant practices go back much further than the last few decades. As Saha points out, we have ‘good reasons for considering the colonial period onward as a distinct one: a period in which corruption has been intrinsic to how the modern state has been seen and performed in its various colonial and post-colonial forms’.⁸⁰ And so in parts of neighbouring Bangladesh, a country that shares a colonial institutional and statutory legacy with Myanmar, the business of criminal justice goes on in markedly similar ways, despite the two countries’ different postcolonial trajectories.⁸¹ The public transcript too has certain commonalities, with the print media in Bangladesh directing its ire towards members of the subordinate judiciary whom lawyers accuse of being corrupt and engaging ‘in irregular practices in the administration of justice’.⁸²

Comparisons with other postcolonial states raise further questions about the degree to which moneymaking practices once embedded in juridical institutions are resistant to political change. Research on Indonesia suggests that far from going into decline, the business of criminal justice has thrived with the post-1998 transition to electoral democracy.⁸³ And in China, repeated and increasingly high-level counter-corruption campaigns have failed to diminish the trade in case outcomes, because the opportunities for moneymaking through courts are – as in Myanmar – well-structured and fully integrated.⁸⁴ National politics might evolve, but the practices associated with repressive government are insidious. Those institutions most concerned with these politics are also the most resistant to demands for a new, opposing brand of politics, a brand evocative of the rule-of-law ideal, rather than evoking one or another of its asymmetrical opposites.